Due process disaggregation.

Author:Parkin, Jason
Position::Introduction through II. Between the 'Generality of Cases' and the 'Rare Exceptions': The Rise of Due Process Subgroups A. Due Process Subgroups Take Center Stage, p. 283-309


One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As

the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on "the generality of cases, not the rare exceptions. " A more granular approach to due process rules, the Court emphasized in a series of rulings between 1976 and 1985, would place an undue administrative and financial burden on the government.

This aspect of procedural due process law no longer matches the on-the-ground realities of many procedural regimes. In recent years, the space between "the generality of cases" and "the rare exceptions" has become populated with subgroups of individuals whose procedural needs are different from those of the typical individual. Whether due to subgroup members' capacities and circumstances, their stronger stake in the proceedings, or their unusually complex cases, subgroup members forced to rely on one-size-fits-all procedures may be deprived of truly meaningful procedural safeguards. At the same time, in ways that were unimaginable just a couple of decades ago, technological developments have enabled government agencies to identify and accommodate subgroup members at a comparatively small additional cost. Based on these developments and the inherently flexible nature of due process, it is time to move beyond the Court's narrow focus on "the generality of cases" and its preference for one-size-fits-all procedural rules. To be sure, not every subgroup warrants additional procedural safeguards. However, rather than dismissing subgroup members as "rare exceptions" unworthy of procedural accommodation, courts should evaluate the due process rights of subgroups under the traditional Mathews balancing test. This refinement of due process doctrine is necessary to ensure that members of due process subgroups-and not just average or typical individuals--are afforded the fundamentally fair procedural protections guaranteed by the Due Process Clause.


Determining the procedures required by the Due Process Clause is a deceptively simple task. The Supreme Court provided the instructions in 1976, when it adopted a three-factor balancing test in Mathews v. Eldridge. (1) Since then, courts have weighed the Mathews factors to specify which procedural safeguards satisfy due process in contexts ranging from deprivations of government benefits (2) and terminations of parental rights, (3) to deportations of noncitizens (4) and involuntary civil commitments to mental hospitals. (5) Yet the Supreme Court and lower courts have never fully answered one of the most basic questions related to due process: In each context, for whom should due process procedures be designed? In other words, does the Due Process Clause merely require that a procedural regime meet the needs of the average or typical person using the procedures, or is some additional tailoring required for people whose procedural needs are quite different from those of the majority?

On the few occasions when the Supreme Court has commented on this aspect of due process, it has suggested a choice between extremes: either due process requires one-size-fits-all procedures designed for the average or typical person in a particular context, or due process requires procedures that are determined on a case-by-case basis. (6) The Court made its preference clear in Mathews, when it explained that due process rules must be targeted to "the generality of cases, not the rare exceptions." (7) Indeed, in almost every case since Mathews, the Court has interpreted the Due Process Clause to require uniform procedural rules even for plaintiffs whose situations were extreme or unusual in tangible ways. (8) Those types of outlier cases do not warrant special procedural rules, the Court has explained, because requiring such tailoring would place an undue administrative and financial burden on the government. (9) Moreover, just identifying, let alone accommodating, the unusual cases would be impracticable. (10)

It is no surprise that the Court has favored an approach to due process that focuses almost exclusively on the needs of the average or typical person using a given set of procedures. With some procedural regimes used by hundreds of thousands of people per year, (11) it is difficult to imagine how government agencies or courts could implement anything approaching individualized procedures. And even if it were possible, the fiscal and administrative burden created by such procedures would, under the Mathews balancing test, surely preclude a court from interpreting the Due Process Clause to require such tailoring.

And yet, viewing due process in purely systemic terms overlooks more than just extreme or idiosyncratic situations that may pop up from time to time. In particular, it fails to account for what this Article refers to as "subgroups"--that is, identifiable clusters of individuals in a particular context whose procedural needs are different from those of the majority.

Subgroups can arise in any context in which due process rules are applied across the board to a diverse population. (12) For example, in the immigration context, subgroups of pro se noncitizen minors and adults with mental disabilities are less able to defend themselves against deportation using the adversarial, trial-like procedures that are available to all noncitizens. In the veterans' disability benefits context, the subgroup of individuals seeking benefits based on military sexual trauma must contend with eligibility standards and an adjudication process that were designed for claims that are more straightforward and easier to document. And in the school discipline context, the subgroup of students attending schools that have criminalized their discipline policies is stuck with limited due process rights based on an inaccurate perception of school discipline as educational rather than criminal in nature. The members of each of these subgroups are situated quite differently from the rest of the individuals using the available procedural safeguards, and those differences cast doubt on whether the procedures constitute due process for the subgroup members. Yet current due process doctrine does not acknowledge the existence of subgroups, nor does it address whether or how the procedural needs of subgroups should be accommodated.

Although the Supreme Court has not been presented with a due process claim on behalf of a subgroup articulated as such, subgroups are not total strangers to the law. (13) In recent years, subgroup members have brought class actions claiming that their due process rights are being violated even though the available procedures are constitutionally sound for non-subgroup members. Government actors have taken affirmative steps, either on their own initiative or in response to litigation, to pass legislation, promulgate regulations, and alter policies in an effort to accommodate the needs of particular subgroups. And a growing branch of due process scholarship is concerned with identifying the plight of particular subgroups and arguing that the Due Process Clause mandates that those subgroups be provided with additional or alternative procedural safeguards.

The increasing visibility of subgroups has not led to a corresponding evolution of due process doctrine or theory, however. Lower courts presented with due process challenges on behalf of subgroups typically respond in one of two ways: either they reject the claims based on the Mathews Court's statement that due process rules must be targeted to "the generality of cases, not the rare exceptions," or they apply the Mathews test to only the subgroup, as if the subgroup members make up the entire population of individuals using the procedures. Absent from these decisions is any discussion of how the subgroup concept fits into the Supreme Court's systemic approach to procedural due process.

Nor has the academic literature fully engaged with the doctrinal and theoretical implications of subgroup due process claims. The arguments advanced in favor of subgroup accommodation largely ignore the Court's reluctance to define due process procedures according to anything other than the needs of the typical or average person using the procedures. Instead, like some lower courts, scholars have mostly analyzed the due process rights of subgroup members using a Mathews analysis that focuses exclusively on the facts and circumstances of the subgroup members themselves.

The lack of clarity concerning the due process rights of subgroups has consequences. Most obviously, across many different contexts in which the Due Process Clause applies, subgroups of individuals are in danger of being deprived of their constitutional right to fair procedures. For their part, judges considering due process claims brought by subgroups lack a clear and consistent way to evaluate those claims. Similarly, government agencies seeking to establish procedural regimes that comport with due process requirements are unable to...

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